n he united states court of appeals for the sixth circuit · united states court of appeals for the...

No. 11-5963

IN THE

United States Court of Appealsfor the Sixth Circuit

______________

LEONARD EMBODY,Plaintiff-Appellant,

v.

STEVEWARD,Defendant-Appellee.

______________

Appeal from the United States District Court for theMiddle District of Tennessee in Case No. 3:10-cv-126

Judge William J. Haynes, Jr.______________

BRIEF OF AMICUS CURIAE BRADY CENTER TO PREVENT GUNVIOLENCE IN SUPPORT OF APPELLEE

______________

JONATHAN E. LOWYDANIEL R. VICEBrady Center to Prevent Gun ViolenceLegal Action Project1225 Eye Street, N.W., Suite 1100Washington, D.C. 20005

December 19, 2011

JONATHAN L. DIESENHAUSJESSICA L. ELLSWORTHMATTHEWC. SULLIVANHOGAN LOVELLS US LLP555 Thirteenth Street, N.W.Washington, D.C. 20004Tel.: (202) 637-5600Fax: (202) 637-5910

Counsel for Amicus Curiae

Case: 11-5963 Document: 006111161259 Filed: 12/19/2011 Page: 1

i

DISCLOSURE OF CORPORATE AFFILIATIONSAND FINANCIAL INTEREST

Pursuant to 6th Cir. R. 26.1, the Brady Center To Prevent Gun Violence

makes the following disclosure:

1. Is said party a subsidiary or affiliate of a publicly owned corporation?If yes, list below the identity of the parent corporation or affiliate and therelationship between it and the named party:

No. The Brady Center To Prevent Gun Violence is a § 501(c)(3) non-

profit corporation, and no publicly held corporation holds its stock.

2. Is there a publicly owned corporation, not a party to this appeal, thathas a financial interest in the outcome? If yes, list the identity of such corporationand the nature of the financial interest.

No.

Dated: December 19, 2011 /s/ Jessica L. Ellsworth


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CONSENT TO FILE

Pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure, amicus

received consent from all parties to file this brief. No party’s counsel authored this

brief in whole or in part. No party, party’s counsel, or person other than amicus,

its members, or its counsel, contributed money intended to fund preparation of this

brief.


iii

TABLE OF CONTENTSPage

INTEREST OF AMICUS .................................................................................... 1INTRODUCTION ............................................................................................... 1LEGAL BACKGROUND ................................................................................... 4ARGUMENT ...................................................................................................... 6

I. The Right Protected in Heller andMcDonald Is a Right ToKeep Firearms in the Home, Not One To Carry Firearms inPublic................................................................................................... 6

II. Under The Second Amendment, The Possession of AssaultWeapons May Be Restricted Because They AreExtraordinarily Dangerous And Are Not Appropriate forLegitimate Self-Defense Purposes. . .................................................. 13A. The “Dangerous and Unusual Weapons” Doctrine Is

Not the “Dangerous and Unusual Conduct WithWeapons” Doctrine. ................................................................ 14

B. Assault Weapons Are Not In Common Use ForLawful Purposes. . ................................................................... 16

C. Assault Weapons Are Unusually Dangerous. .......................... 191. The Defining Features Of Assault Weapons

Make Those Weapons Particularly ConduciveTo Offensive Use. ........................................................... 19

2. Numerous Legislatures and Courts HaveRecognized The Danger Posed By AssaultWeapons. . ...................................................................... 23

CONCLUSION ................................................................................................. 26


iv

TABLE OF AUTHORITIES

Page(s)CASES

Arnold v. Cleveland,616 N.E.2d 163 (Ohio 1993)........................................................................... 24

Aymette v. State,21 Tenn. 154 (1840)........................................................................................ 10

Benjamin v. Bailey,662 A.2d 1226 (Conn. 1995)........................................................................... 24

Bliss v. Commonwealth,12 Ky. 90 (1822)............................................................................................. 10

District of Columbia v. Heller,554 U.S. 570 (2008) ................................................................................. passim

Embody v. Ward,No. 3:10cv-00126, 2011 WL 2971055 (M.D. Tenn. July 20, 2011) .................. 7

English v. State,35 Tex. 473 (1871) ......................................................................................... 10

Ex parte Thomas,97 P. 260 (Okla. 1908).................................................................................... 10

Fife v. State,31 Ark. 455 (1876) ......................................................................................... 10

Gonzalez v. Village of W. Milwaukee,No. 09CV0384, 2010 WL 1904977 (E.D. Wis. May 11, 2010)......................... 9

Heller v. District of Columbia,--- F.3d ----, 2011 WL 4551558 (D.C. Cir. Oct. 4, 2011) ......................... passim

Hill v. State,53 Ga. 472 (1874) ........................................................................................... 10


TABLE OF AUTHORITIES—Continued

Page(s)

v

Kachalsky v. Cacace,--- F. Supp. 2d ----, 2011 WL 3962550 (S.D.N.Y. Sept. 2, 2011) ............... 9, 12

McDonald v. City of Chicago,130 S. Ct. 3020 (2010)............................................................................. passim

Merrill v. Navegar, Inc.,28 P.3d 116 (Cal. 2001) ................................................................................. 20

Navegar, Inc. v. United States,192 F.3d 1050 (D.C. Cir. 1999) ...................................................................... 24

People v. Aguilar,944 N.E.2d 816 (Ill. App. Ct. 2011).................................................................. 8

People v. Dawson,934 N.E.2d 598 (Ill. App. Ct. 2010) . ..... …........................................................ 8

People v. James,94 Cal. Rptr. 3d 576 (Ct. App. 2009) ... ...........................................................13

People v. Yarbrough,86 Cal. Rptr. 3d 674 (Ct. App. 2008) .............................................................. 12

Richard v. County of Yolo,--- F. Supp. 2d ----, 2011 WL 1885641 (E.D. Cal. May 16, 2011) .....................9

Riddick v. United States,995 A.2d 212 (D.C. 2010)..................................................................................9

Robertson v. Baldwin,165 U.S. 275 (1897) ........................................................................................... 6

Robertson v. City & Cnty. of Denver,874 P.2d 325 (Colo. 1994) .............................................................................. 24



Page(s)

vi

Sims v. United States,963 A.2d 147 (D.C. 2008) ...……...................................................................... 9

Springfield, Inc. v. Buckles,292 F.3d 813 (D.C. Cir. 2002) ........................................................................ 24

Staples v. United States,511 U.S. 600 (1994)........................................................................................ 22

State v. Buzzard,4 Ark. 18 (1842) ............................................................................................. 10

State v. Jumel,13 La. Ann. 399 (1858)................................................................................... 10

State v. Knight,218 P.3d 1177 (Kan. Ct. App. 2009)................................................................. 8

State v. Workman,35 W. Va. 367 (1891) .................................................................................... 10

United States v. Chester,628 F.3d 673 (4th Cir. 2010)........................................................................... 15

United States v. Fincher,538 F.3d 868................................................................................................... 15

United States v. Laurent,--- F. Supp. 2d ----, 2011 WL 6004606 (E.D.N.Y. Dec. 2, 2011) ...................... 9

United States v. Marzzarella,614 F.3d 85 (3d Cir. 2010)................................................................................ 5

United States v. Masciandaro,638 F.3d 458 (4th Cir. 2011)............................................................................. 9

United States v. Reese,627 F.3d 792 (10th Cir. 2010)........................................................................... 5



Page(s)

vii

United States v. Skoien,614 F.3d 638 (7th Cir. 2010)............................................................................. 5

United States v. Tooley,717 F. Supp. 2d 580 (S.D.W. Va. 2010)............................................................ 9

United States v. Walker,380 A.2d 1388 (D.C. 1977)............................................................................. 12

Williams v. State,10 A.3d 1167 (Md. 2011) .......... ..................................................................... 7-8

STATUTES

1876 Wyo. Comp. Laws ch. 52, § 1 ..…............................................................ 9-10

Ark. Act of Apr. 1, 1881 ...................................................................................... 10

Aurora, Ill., Code of Ordinances § 29-49 ............................................................ 23

Cal. Penal Code §§ 12276–12282 .........................................................................23

City Code of Buffalo N.Y. § 180-1 ...................................................................... 23

City of Rochester Code § 47-5............................................................................. 23

Conn. Gen. Stat. § 53-202a ................................................................................. 23

Conn. Gen. Stat. § 53-202c .................................................................................. 23

D.C. Code § 7-2502.02(a)(6) .............................................................................. 23

D.C. Code § 7-2506.01(b).................................................................................... 23

Denver Colo. Mun. Code § 38-130 ...................................................................... 23

Haw. Rev. Stat. § 134-1 ....................................................................................... 23



Page(s)

viii

Haw. Rev. Stat. § 134-4 ....................................................................................... 23

Haw. Rev. Stat. § 134-8 ....................................................................................... 23

Mass. Gen. Laws ch. 140, §§ 121–123................................................................. 23

Md. Code, Crim. Law §§ 4-301–4-306 ................................................................ 23

N.J. Stat. Ann. § 2C:39-1(w) ................................................................................23

N.J. Stat. Ann. § 2C:39-5 ......................................................................................23

N.Y. Penal Law § 265.00(22) .............................................................................. 23

N.Y. Penal Law § 265.02(7) ................................................................................ 23

N.Y. Penal Law § 265.10..................................................................................... 23

Tenn. Code Ann. § 39-17-1311(b)(1)(H) ............................................................1, 2

Tenn. Code Ann. § 39-17-1351...........................................................................1, 4

Tex. Act of Apr. 12, 1871 .................................................................................... 10

CONSTITUTIONAL PROVISIONS:

Ky. Const. of 1850, art. XIII, § 25 ....................................................................... 10

U.S. Const., amend. II .................................................................................... passim

OTHER AUTHORITIES

Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), NationalFirearms Registration and Transfer Record (June 2007) …... .........................16



Page(s)

ix

Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) & Dep’t of theTreasury, Study on the Sporting Suitability of Modified SemiautomaticAssault Rifles (Apr. 1998) ....................................................................... passim

Christopher S. Koper, et al., An Updated Assessment of the Federal AssaultWeapons Ban (Report to National Institute of Justice, U.S. Dep’t ofJustice, June 2004) ............................................................................. 16, 22, 23

Colby Goodman, Update on U.S. Firearms Trafficking to Mexico Report(Apr. 2011) .................................................................................................... 17

Ernst Freund, The Police Power, Public Policy and Constitutional Rights(1904) ............................................................................................................ 11

Gov’t Accountability Office, Firearms Trafficking: U.S. Efforts to CombatArms Trafficking to Mexico Face Planning and Coordination Challenges(2009) ............................................................................................................ 18

Hon. John Dillon, The Right to Keep and Bear Arms for Public and PrivateDefense (Part 3), 1 CENT. L.J. 259 (1874) ...................................................... 11

Joel Prentiss Bishop, Commentaries on the Criminal Law § 125 (1868) ............. 10

John Norton Pomeroy, An Introduction to the Constitutional Law of theUnited States (1868) ....................................................................................... 11

Legal Cmty. Against Violence, Regulating Guns in America: An Evaluationand Comparative Analysis of Federal, State, and Selected Local GunsLaws (Feb. 2008) ........................................................................................... 23

Marianne Zawitz, U.S. Dep’t of Justice, Bureau of Justice Statistics, GunsUsed in Crime (1995) ..................................................................................... 16

Philip Cook & Jens Ludwig, National Institute of Justice, Guns in America:National Survey on Private Ownership and Use of Firearms (May 1997) ..... 17

Testimony of Brian J. Siebel, Brady Center to Prevent Gun Violence (Oct. 1,2008) ................................................................................................. 19, 20, 22



Page(s)

x

The Gun Digest Book of Assault Weapons (Jack Lewis ed., 1st ed., 1986) .......... 19

U.S. Dep’t of Treasury, Assault Weapons Profile (Apr. 1994) ............. 3, 18, 19, 21

Violence Policy Center, Assault Weapons Marketing (1998) . ..............................19


INTEREST OF AMICUS

Amicus the Brady Center to Prevent Gun Violence is the nation’s largest

non-partisan, non-profit organization dedicated to reducing gun violence through

education, research, and legal advocacy. Through its Legal Action Project, the

Brady Center has filed numerous briefs amicus curiae in cases involving state and

federal gun laws. Amicus brings a broad and deep perspective to the issues raised

by this case and has a compelling interest in ensuring that the Second Amendment

does not impede reasonable governmental action to prevent gun violence.

INTRODUCTION

Appellant’s principal Second Amendment argument on appeal is that Tenn.

Code Ann. § 39-17-1311(b)(1)(H) gives a gun permit holder an “unalloyed” right

to carry his gun in a state park. (See Appellant’s Br. 9-10; Appellant’s Reply 5.)

According to Appellant, Appellee violated that right by disarming him. The

district court, however, correctly found that Appellant’s statutory right was limited

by Tenn. Code Ann. § 39-17-1351, to which § 39-17-1311(b)(1)(H) specifically

refers, and held that Appellee’s actions were reasonable under § 39-17-1351(t).

To affirm, the Court need not address the constitutionality of open-carry

provisions or of assault-weapon bans. Indeed, Appellant appears to disavow

reliance on the general protections of the Second Amendment, and does not argue

that Tenn. Code Ann. § 39-17-1351(t) is unconstitutional, opting instead to rely on


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the right afforded him by Tenn. Code Ann. § 39-17-1311(b)(1)(H). (See

Appellant’s Reply 5 (“The issue here is one of the reasonableness of a detention

and seizure. This case is not [District of Columbia v.] Heller, and it is not

McDonald [v. City of Chicago].”).)

Nevertheless, should the Court consider the broader Second Amendment

issues, it should do so fully and completely appraised of the applicable law. Amici

Second Amendment Foundation, Inc. (“SAF”) and the Calguns Foundation, Inc.

(“Calguns”), recognizing the deficiency in Appellant’s Second Amendment claim,

conclude that the Second Amendment does not protects his conduct, but base their

conclusion on an incorrect view of the law. Amici assert that “the right to bear

arms applies in public parks,” (SAF Br. 3), and that the Second Amendment

protects Appellant’s AK-47, (id. 21-30), but that Appellant’s conduct removed him

from the Second Amendment’s scope. If Appellant’s conduct had been different—

for example, if he had not painted the tip of his gun orange—amici argue that he

would have fallen under the protections of the Second Amendment.

Amici’s assertions about the scope of the Second Amendment, however,

misstate the law. First, while the Supreme Court held that the Second Amendment

protects a right to possess guns in the home for self-defense, it never recognized a

broader right to carry guns in public. The right to keep and bear arms recognized

in District of Columbia v. Heller is unique among constitutional rights in the risks


3

it presents. 554 U.S. 570 (2008). Guns are designed to kill, and gun possession

and use subject others to a serious risk of deadly harm. In Heller andMcDonald v.

City of Chicago, 130 S. Ct. 3020 (2010), the Court did not announce a right to

carry in public but instead repeatedly stated its holding as bound to the home.

Numerous courts, from the 19th century to post-McDonald, have recognized that

the Second Amendment does not prevent states from restricting or barring the

carrying of handguns in public.

And second, the AK-47 at issue here is among the small subset of military-

style semi-automatic weapons specifically designed for offensive use and most apt

to injure innocent bystanders. Such assault weapons, which are used in both

ordinary crime and mass shootings at rates far higher than other firearms, are not

entitled to protection under the Second Amendment. As is clear from Heller, the

Second Amendment does not protect arms that are not in common use for the

lawful purpose of self-defense, or arms that are particularly dangerous. That

includes the assault weapon at issue here, which was “designed for rapid fire, close

quarter shooting at human beings.” See U.S. Dep’t of Treasury, Assault Weapons

Profile 19 (Apr. 1994). Because assault weapons, unlike handguns, are not widely

used for defensive purposes, and because such weapons pose particularly acute

public safety concerns, restrictions on their possession and use do not offend the

Second Amendment.


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Therefore, although Appellant does not appear to raise a constitutional

challenge to Tenn. Code Ann. § 39-17-1351(t), and the Court can consequently

affirm the district court by reference to Appellant’s conduct, adopting the

principles urged by SAF and Calguns would be an incorrect statement of the law.

LEGAL BACKGROUND

Recent Supreme Court Second Amendment Jurisprudence: In Heller, the

Supreme Court held that the Second Amendment protects the right of responsible,

law-abiding citizens to possess guns in the home for the purpose of self-defense.

554 U.S. at 628-29. While the Court could have stopped there, it went out of its

way to stress that its holding did not “cast doubt” on other gun laws and even

identified a non-exhaustive list of “presumptively lawful” measures that passed

constitutional muster. Id. at 626-27 & n.26. Those “presumptively lawful”

measures included laws restricting, and even banning, the public carry of weapons.

Indeed, in approvingly discussing long-understood limitations on the right to keep

and bear arms, the Court specifically noted that “the majority of the 19th-century

courts” considered outright “prohibitions on carrying concealed weapons . . .

lawful under the Second Amendment or state analogues.” Id. at 626. The Court

also “recognize[d] another important limitation on the right to keep and carry

arms,” namely that the Second Amendment protects only those weapons “in


5

common use at the time,” consistent with “the historical tradition of prohibiting the

carrying of ‘dangerous and unusual weapons.’” Id. at 627.

Two years later, the Court incorporated the Second Amendment to states,

but “repeat[ed]” Heller’s “assurances” regarding its limited scope, and agreed that

“state and local experimentation with reasonable firearms regulations will continue

under the Second Amendment.” McDonald, 130 S. Ct. at 3046-47 (internal

citation omitted). Once again, the Court did not extend the Second Amendment

right to cover assault weapons or locations beyond the home.

Standard of Review: Since Heller, an increasing number of courts have

utilized a two-pronged approach to Second Amendment claims, under which they

ask: (1) does the law or regulation at issue implicate protected Second Amendment

activity, and (2) if so, does it withstand the appropriate level of scrutiny? See, e.g.,

Heller v. District of Columbia (“Heller II”), --- F.3d ----, 2011 WL 4551558, at *5

(D.C. Cir. Oct. 4, 2011); United States v. Skoien, 614 F.3d 638 (7th Cir. 2010);

United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010); United States v.

Reese, 627 F.3d 792, 800 (10th Cir. 2010). If the challenged law or regulation

does not implicate protected Second Amendment activity, then the analysis ends

and the law is deemed constitutional.


6

ARGUMENT

There is no Second Amendment right to possess and carry weapons in public

places, including public parks, nor is there a Second Amendment right to possess

and carry assault weapons.

I. The Right Protected in Heller andMcDonald Is a Right To KeepFirearms in the Home, Not One To Carry Firearms in Public.

The Supreme Court’s decision in Heller recognized that the Second

Amendment protects “the right of law-abiding, responsible citizens to use arms in

defense of hearth and home.” Heller, 554 U.S. at 635 (emphasis added). The

Court only recognized Heller’s right “to carry [] in the home,” id. (emphasis

added), and did not mention, much less approve, the carrying of firearms in public.

See id. It focused, instead, on the historical recognition of the right of individuals

“to keep and bear arms to defend their homes, families or themselves,” id. at 615

(internal quotation marks omitted), and the continuing need to keep and use

firearms “in defense of hearth and home.” Id. at 635. Thus it held no more than

that “the District’s ban on handgun possession in the home violates the Second

Amendment, as does its prohibition against rendering any lawful firearm in the

home operable for the purpose of immediate self-defense.” Id. at 635 (emphasis

added); see also Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897) (“the right of

the people to keep and bear arms (article 2) is not infringed by laws prohibiting the

carrying of concealed weapons.”).


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SAF and Calguns argue, in essence, that the Heller Court embraced a

constitutional right to carry guns in public, but for some reason chose not to say so

explicitly. Their subliminal argument misreads Heller. Indeed, amici cannot

explain why the Court would so explicitly hold that the Second Amendment was

“not unlimited,” and that a (non-exhaustive) host of gun laws remained

“presumptively lawful,” while keeping its declaration that the Second Amendment

protected a right to carry guns in public hidden and implicit, leaving courts with (at

most) supposed tea leaves on which to find a broad right to carry in public. Nor

can amici explain why the Heller Court expressly approved of decisions upholding

concealed carry bans, but chose not to state the flip-side that is crucial to amici’s

argument – that some form of public carrying must be permitted.

Post-Heller, numerous state and federal courts have held that the Second

Amendment does not protect a broad right to carry weapons in public, repeatedly

describing Heller’s core holding as bound to the home. 1 In Williams v. State,

Maryland’s highest court considered, and summarily rejected, the argument that

Heller endorsed a public right to carry guns:

1 Although the district court did not decide explicitly whether the SecondAmendment extended beyond the home, it cited approvingly decisions thatacknowledged Heller’s narrow scope and noted that the “site of this seizure ofPlaintiff’s weapon,” a public park, “present[ed] a significant fact for Plaintiff’sSecond Amendment claim,” which it then dismissed. See Embody v. Ward, No.3:10cv-00126, 2011 WL 2971055, at *10-11 (M.D. Tenn. July 20, 2011).


8

Heller andMcDonald emphasize that the Second Amendment isapplicable to statutory prohibitions against home possession, the dictainMcDonald that “the Second Amendment protects a personal right tokeep and bear arms for lawful purposes, most notably for self-defensewithin the home,” notwithstanding. Although Williams attempts tofind succor in this dicta, it is clear that prohibition of firearms in thehome was the gravamen of the certiorari questions in both Heller andMcDonald and their answers. If the Supreme Court, in this dicta,meant its holding to extend beyond home possession, it will need tosay so more plainly.

10 A.3d 1167, 1177 (Md. 2011) (emphasis added) (internal citation omitted).

This reasoning is hardly unique; in People v. Dawson, the Illinois Court of

Appeals rejected arguments strikingly similar to amici’s, and held:

Heller specifically limited its ruling to interpreting the amendment’sprotection of the right to possess handguns in the home, not the rightto possess handguns outside of the home in case of confrontation—afact the dissent heartily pointed out by noting that “[n]o party oramicus urged this interpretation; the Court appears to have fashionedit out of whole cloth.” TheMcDonald Court refused to expand on thisright, explaining that the holding in Heller that the second amendmentprotects “the right to possess a handgun in the home for the purpose ofself-defense” was incorporated.

934 N.E.2d 598, 605-06 (Ill. App. Ct. 2010) (internal citations omitted) (emphasis

added), cert. denied, 131 S. Ct. 2880; see also People v. Aguilar, 944 N.E.2d 816,

823 (Ill. App. Ct. 2011) (Heller andMcDonald limit the “right to possess handguns

in the home, not the right possess to handguns outside the home.”); State v. Knight,

218 P.3d 1177, 1189 (Kan. Ct. App. 2009) (“It is clear that the [Heller] Court was

drawing a narrow line regarding the violations related solely to use of a handgun in

the home for self-defense purposes.”).


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Likewise, the Fourth Circuit recently declined to extend the Second

Amendment right beyond the home, refusing to “push Heller beyond its

undisputed core holding.” United States v. Masciandaro, 638 F.3d 458, 475 (4th

Cir. 2011). “On the question of Heller’s applicability outside the home

environment,” the court stated, “we think it prudent to await direction from the

Court itself.” Id. at 475-76. 2

The same historic recognition of the Second Amendment’s limits holds true

across the country. See 1876 Wyo. Comp. Laws ch. 52, § 1 (1876 Wyoming law

2 In fact, a growing number of courts have similarly held that the rightrecognized in Heller andMcDonald is confined to the home. See, e.g., UnitedStates v. Laurent, --- F. Supp. 2d ----, 2011 WL 6004606, at *22 (E.D.N.Y. Dec. 2,2011) (“The right to self-defense in the home belongs to ‘law-abiding citizens forlawful purposes.’ It does not prohibit government regulation of firearms outside ofthe home or limitations on ownership of certain firearms; nor does it prevent thegovernment from limiting the use of firearms for specific purposes or by specificpeople.” (quoting Heller, 554 U.S. at 627)); Kachalsky v. Cacace, --- F. Supp. 2d ----, 2011 WL 3962550, at *23 (S.D.N.Y. Sept. 2, 2011) (“To the extent thatPlaintiffs are attacking New York’s statutory scheme as precluding open carry . . .such carrying is likewise outside the core Second Amendment concern articulatedin Heller: self-defense inside the home.”); Richard v. County of Yolo, --- F. Supp.2d ----, 2011 WL 1885641, at *3 (E.D. Cal. May 16, 2011); Gonzalez v. Village ofW. Milwaukee, No. 09CV0384, 2010 WL 1904977, at *4 (E.D. Wis. May 11, 2010)(“The Supreme Court has never held that the Second Amendment protects thecarrying of guns outside the home.”); United States v. Tooley, 717 F. Supp. 2d 580,596 (S.D.W. Va. 2010) (“Additionally, possession of a firearm outside of the homeor for purposes other than self-defense in the home are not within the ‘core’ of theSecond Amendment right as defined by Heller.”); Riddick v. United States, 995A.2d 212, 222 (D.C. 2010) (Second Amendment does not “compel the District tolicense a resident to carry and possess a handgun outside the confines of his home,however broadly defined.” (quoting Sims v. United States, 963 A.2d 147, 150 (D.C.2008))).


10

prohibiting anyone from “bear[ing] upon his person, concealed or openly, any

firearm or other deadly weapon, within the limits of any city, town or village”);

Ark. Act of Apr. 1, 1881; Tex. Act of Apr. 12, 1871; Fife v. State, 31 Ark. 455

(1876) (upholding carrying prohibition as a lawful “exercise of the police power of

the State without any infringement of the constitutional right” to bear arms);

English v. State, 35 Tex. 473, 473, 478 (1871); Hill v. State, 53 Ga. 472, 474 (1874)

(“at a loss to follow the line of thought that extends the guarantee” – in the state

Constitution of the “right of the people to keep and bear arms” – “to the right to

carry pistols, dirks, Bowieknives, and those other weapons of like character, which,

as all admit, are the greatest nuisances of our day.”); State v. Workman, 35 W. Va.

367, 373 (1891); Ex parte Thomas, 97 P. 260, 262 (Okla. 1908); Aymette v. State,

21 Tenn. 154, 159-61 (1840) (“The Legislature . . . ha[s] a right to prohibit the

wearing or keeping weapons dangerous to the peace and safety of the citizens, and

which are not usual in civilized warfare, or would not contribute to the common

defence.”); State v. Buzzard, 4 Ark. 18, 21 (1842); State v. Jumel, 13 La. Ann. 399,

400 (1858).3

3 Bliss v. Commonwealth, 12 Ky. 90, 91, 93 (1822), in which Kentucky’sSupreme Court held Kentucky’s concealed-weapons ban in conflict with itsConstitution, is recognized as an exception to this precedent. See Joel PrentissBishop, Commentaries on the Criminal Law § 125, at 75-76 (1868). In fact, thelegislature later corrected the anomalous decision by amending its constitution toallow a concealed weapons ban. See Ky. Const. of 1850, art. XIII, § 25.


11

Noted scholars and commentators have also long recognized that a right to

keep and bear arms does not prevent states from restricting or forbidding guns in

public places. For example, John Norton Pomeroy’s Treatise, which Heller cited

as representative of “post-Civil War 19th-century sources” commenting on the

right to bear arms, 554 U.S. at 618, stated that the right to keep and bear arms “is

certainly not violated by laws forbidding persons to carry dangerous or concealed

weapons . . . .” JOHN NORTON POMEROY, AN INTRODUCTION TO THE

CONSTITUTIONAL LAW OF THE UNITED STATES 152-53 (1868). Similarly, Judge

John Dillon explained that even where there is a right to bear arms, “the peace of

society and the safety of peaceable citizens plead loudly for protection against the

evils which result from permitting other citizens to go armed with dangerous

weapons.” Hon. John Dillon, The Right to Keep and Bear Arms for Public and

Private Defense (Part 3), 1 CENT. L.J. 259, 287 (1874). And an authoritative study

published in 1904 concluded that the Second Amendment and similar state

constitutional provisions had “not prevented the very general enactment of statutes

forbidding the carrying of concealed weapons,” which demonstrated that

“constitutional rights must if possible be so interpreted as not to conflict with the

requirements of peace, order and security.” ERNST FREUND, THE POLICE POWER,

PUBLIC POLICY AND CONSTITUTIONAL RIGHTS (1904).


12

Courts continue to recognize post-Heller that there are profound public

safety rationales for restricting guns in public:

Unlike possession of a gun for protection within a residence, carryinga concealed firearm presents a recognized threat to public order, and isprohibited as a means of preventing physical harm to persons otherthan the offender. A person who carries a concealed firearm on hisperson or in a vehicle, which permits him immediate access to thefirearm but impedes others from detecting its presence, poses animminent threat to public safety. . . .

People v. Yarbrough, 86 Cal. Rptr. 3d 674, 682 (Cal. Ct. App. 2008) (internal

quotations and citations omitted); see also Kachalsky, 2011 WL 3962550, at *28

(“Notwithstanding the emphasis placed on the interest in regulating concealed

carry, the same rationales apply equally, or almost equally, to the regulation of

open carry.”); cf. United States v. Walker, 380 A.2d 1388, 1390 (D.C. 1977) (there

is an “inherent risk of harm to the public of such dangerous instrumentality being

carried about the community and away from the residence or business of the

possessor”).

There is no dispute that Appellee’s actions in this case do not impede the

ability of individuals to keep handguns in defense of their homes. Instead, they

affect only the carrying of weapons in public, a different issue entirely, and one

that neither the Supreme Court nor other courts have recognized as protected under

the Second Amendment. As a result, Appellant has failed to challenge protected

Second Amendment activity, and the district court’s judgment should stand.


13

II. Under The Second Amendment, The Possession of Assault WeaponsMay Be Restricted Because They Are Extraordinarily Dangerous AndAre Not Appropriate for Legitimate Self-Defense Purposes.

Restrictions on the possession of assault weapons are consistent with the

scope of the Second Amendment right recognized in Heller, for such restrictions

would cover only unusually dangerous weapons not commonly used for lawful

self-defense. See People v. James, 94 Cal. Rptr. 3d 576, 585-86 (Ct. App. 2009),

cert. denied, 130 S. Ct. 1517 (2009) (“Heller does not extend Second Amendment

protection to assault weapons . . . .”); see also Heller II, 2011 WL 4551558, at *15

(upholding D.C. assault weapon ban under intermediate scrutiny because of

particularly dangerous characteristics of assault weapons and their use in violent

crime).

The Supreme Court in Heller made clear that not every prohibition on

firearms would violate the Second Amendment; thus, it stated that the Second

Amendment does not protect a right to own “any weapon whatsoever,” and that

“‘dangerous and unusual weapons’” may be prohibited. 554 U.S. at 626, 627.

Amici suggest that assault weapons fall out of the protection of the Second

Amendment only when an individual possessing an assault weapon exhibits

dangerous and unusual conduct. But Heller makes clear that assault weapons do

not fall under the protections of the Second Amendment, because they, as a class

of weapon, are dangerous and unusual.


14

A. The “Dangerous and Unusual Weapons” Doctrine Is Not the“Dangerous and Unusual Conduct With Weapons” Doctrine.

In Heller, the Court recognized that the Second Amendment’s reach was

limited to “the sorts of weapons . . . in common use at the time.” 554 U.S. at 627.

Indeed, the Heller Court took pains to note that the right to keep and bear arms for

the purpose of self-defense protected by the Second Amendment is entirely

compatible with the “historical tradition of prohibiting the carrying of ‘dangerous

and unusual weapons’” unnecessary for self-defense. Id. at 627; see also

McDonald, 130 S. Ct. at 3047 (stressing that the “right to keep and bear arms is not

‘a right to keep and carry any weapon whatsoever in any manner whatsoever and

for whatever purpose’” (quoting Heller, 554 U.S. at 626)). In support, it cited

several historical treatises and cases. Examining these sources, amici argues that

they “had always required that the arms be used or carried in such a manner as to

terrorize the population, rather than in the manner suitable for ordinary self-

defense.” (SAF Br. 23.) Amici concludes therefore that “the longstanding

prohibition on the carrying of ‘dangerous and unusual weapons’ does not, in fact,

refer to types of weapons, but to types of conduct with weapons.” (Id.) Amici urge

affirmance of the district court’s judgment on this interpretation of Heller.

That is not the law. Amici are obviously correct that the Second Amendment

does not protect all conduct with firearms. But this is not because Heller excluded

“dangerous and unusual weapons” from the Second Amendment’s protections.


15

Even if amici’s interpretation of the historical sources cited in Heller were correct,

Heller’s “limitation on the right to keep and carry arms” explicitly referred to the

“sorts of weapons protected,” not the ways in which those weapons were used.

554 U.S. at 627 (emphasis added). No case interpreting Heller has so creatively

substituted “dangerous and unusual conduct with weapons” for “dangerous and

unusual weapons,” and it is unsurprising that amici cite no modern authority for

that proposition. Indeed, a wealth of authority holds that the Heller Court meant

exactly what it said—dangerous and unusual types of weapons are excluded from

the protection of the Second Amendment, not dangerous and unusual conduct with

those weapons. See, e.g., Heller II, 2011 WL 4551558, at *12 (“[W]e must also

ask whether the prohibited weapons are ‘typically possessed by law-abiding

citizens for lawful purposes’; if not, then they are not the sorts of ‘Arms’ protected

by the Second Amendment.” (quoting Heller, 554 U.S. at 625)); United States v.

Chester, 628 F.3d 673, 678 (4th Cir. 2010) (“Heller declined to ‘undertake an

exhaustive historical analysis . . . of the full scope of the Second Amendment,’ but

did identify one specific historical limitation as to which arms a citizen had the

right to bear.” (quoting Heller, 554 U.S. at 626)); United States v. Fincher, 538

F.3d 868, 874 (“Machine guns are not in common use by law-abiding citizens for

lawful purposes and therefore fall within the category of dangerous and unusual

weapons that the government can prohibit for individual use.”).


16

B. Assault Weapons Are Not In Common Use For Lawful Purposes.

Assault weapons are not commonly used by private citizens for lawful

purposes. Amici’s assertion that these weapons “would easily qualify as arms of

the kind in common use,” (SAF Br. 22), wrongly classifies assault weapons as

ordinary arms. In fact, assault weapons comprise only a tiny fraction of firearms in

circulation—by the government’s estimates, no more than 1 percent. SeeMarianne

Zawitz, U.S. Dep’t of Justice, Bureau of Justice Statistics, Guns Used in Crime 6

(1995) (assault weapons constituted about 1% of guns in circulation prior to

federal assault weapons ban); Christopher S. Koper et al., An Updated Assessment

of the Federal Assault Weapons Ban 10 (Report to National Institute of Justice,

U.S. Dep’t of Justice, June 2004) (“Koper, An Updated Assessment”) (“Around

1990, there were an estimated 1 million privately owned AWs in the U.S. (about

0.5% of the estimated civilian gun stock)[.]”)).4 Notably, these numbers are

roughly in line with the number of destructive devices, machine guns, short-

barreled shotguns, and other dangerous weapons that are controlled by the National

Firearms Act (“NFA”)—arms that clearly fall within a category of weapons

permissibly banned as “dangerous and unusual” under Heller.5 See Heller, 554

4 Available at http://www.ncjrs.gov/pdffiles1/nij/grants/204431.pdf.5 The National Firearms Registration and Transfer Record indicates thatapproximately 1.9 million arms that are controlled under the NFA were registeredin 2006. See ATF, National Firearms Registration and Transfer Record (June2007), available at http://www.justice.gov/oig/reports/ATF/e0706/back.htm. The


17

U.S. at 625, 627 (explaining that the “Second Amendment does not protect those

weapons not typically possessed by law-abiding citizens for lawful purposes, such

as short barreled shotguns” or “M-16 rifles and the like”).

Amici assert that “Americans today access these highly popular arms [assault

weapons] for various traditional lawful purposes to which they are well-suited.”

(SAF Br. 22.) Unsurprisingly, amici cite no authority for this principle, nor do

they identify what “traditional lawful purposes” an AK-47 serves. In fact, many

dangerous weapons manufactured and sold in the United States are diverted to

criminal use. To cite just one example, every year thousands of U.S.-made

weapons are purchased by “straw” purchasers in the United States and illegally

smuggled to Mexico for use by Mexican drug cartels. See Colby Goodman,

Update on U.S. Firearms Trafficking to Mexico Report 5 (Apr. 2011).6 The “most

popular firearm associated with these” firearm trafficking cases “was an AK-47

type rifle.” Id. at 6. According to a recent Government Accountability Office

report, military-style assault rifles—in particular AK variants and the AR-15

National Institute of Justice estimates that there are 200 million guns in privatehands in the United States, making NFA-controlled arms about .95% of the civilianweaponry. See Philip J. Cook & Jens Ludwig, National Institute of Justice, Gunsin America: National Survey on Private Ownership and Use of Firearms 1 (May1997), available at https://www.ncjrs.gov/pdffiles/165476.pdf.6 Available at http://www.wilsoncenter.org/sites/default/files/Update%20on%20U.S.%20Firearms%20Trafficking%20to%20Mexico%20Report.pdf (between2007 and 2009, more than 69,808 firearms were recovered in Mexico, with amajority having a nexus to the United States).


18

rifle—are increasingly popular with these arms traffickers, because they can pierce

the armor worn by the Mexican police. See Gov’t Accountability Office, Firearms

Trafficking: U.S. Efforts to Combat Arms Trafficking to Mexico Face Planning and

Coordination Challenges 17 (2009).7 And significantly, assault weapons are used

in gun crimes at a disproportionately high rate as compared to other firearms. See

U.S. Dep’t of Treasury, Assault Weapons Profile 19 (finding that assault weapons

“are preferred by criminals over law abiding citizens 8 to 1”); ATF & Dep’t of the

Treasury, Department of the Treasury Study on the Sporting Suitability of Modified

Semiautomatic Assault Rifles 38 (“ATF Report”) (Apr. 1998) (describing assault

weapons as “attractive to certain criminals”).

That assault weapons make up a small percentage of the nation’s gun stock

used by civilians for lawful purposes is not surprising, given that those weapons

are of relatively recent vintage and are marketed for their military attributes, rather

than for home defense. Indeed, the term “assault weapon” was introduced by the

gun industry in the 1980s to market new weapons with features not previously

common or seen as necessary for self-defense or sporting. In 1986, Gun Digest,

one of the preeminent publications of gun enthusiasts, published the first edition of

The Gun Digest Book of Assault Weapons, which noted that a new “element of the

civilian population” was beginning to show an interest in acquiring “assault-type

7 Available at http://www.gao.gov/new.items/d09709.pdf.


19

weapons limited to semiautomatic fire,” such as the AK-47 and the Uzi.8 Gun

manufacturer Heckler & Koch marketed its HK-91 semi-automatic as an “assault

rifle,” and a 1985 ad for the Colt AR-15 played up the fact that the AR-15 “is the

civilian version of the battle proven and recently improved U.S. military M-

16A1.”9 In 1994, after years of studying these weapons, the ATF concluded that

“[y]ou will not find these weapons in a duck blind or at the Olympics,” but rather

assault weapons were “designed for rapid fire, close quarter shooting at human

beings.” See U.S Dep’t of Treasury, Assault Weapons Profile 19.

C. Assault Weapons Are Unusually Dangerous.

1. The Defining Features Of Assault Weapons Make ThoseWeapons Particularly Conducive To Offensive Use.

The defining features of assault weapons, such as high firepower, protruding

grips, folding or telescopic stocks, barrel shrouds, and muzzle brakes, render these

firearms uniquely dangerous. “‘[These] military features . . . are designed to

enhance [these firearms’] capacity to shoot multiple human targets very rapidly.”

Heller II, 2011 WL 4551558, at *15 (quoting Testimony of Brian J. Siebel, Brady

Center to Prevent Gun Violence (Oct. 1, 2008) (“Siebel Testimony”)). Assault

weapons’ greater firepower most obviously aids in that design, but other assault-

weapon features do as well.

8 The Gun Digest Book of Assault Weapons 5 (Jack Lewis ed., 1st ed., 1986).9 See Violence Policy Center, Assault Weapons Marketing (1998), availableat http://www.vpc.org/studies/awamarkt.htm.


20

Protruding grips. Protruding pistol grips “were designed to assist in

controlling machineguns during automatic fire” and allow the shooter to spray-fire

from the hip position. ATF Report Ex. 5; see also Heller II, 2011 WL 4551558, at

*15 (“Pistol grips on assault rifles . . . help stabilize the weapon during rapid fire

and allow the shooter to spray-fire from the hip position.” (quoting Siebel

Testimony)). Further, protruding pistol grips can “be an aid in one-handed firing

of the weapon in a combat situation.” ATF Report Ex. 5. By contrast, there is no

reason to believe that such grips improve a firearm’s performance in the

overwhelming majority of self-defense encounters. Nor are such grips of any

value for sporting purposes, since spray-firing and “one-handed shooting [are] not

usually employed in hunting or organized competitive target competitions.” 10 Id.

Barrel Shrouds. Barrel shrouds “disperse[] the heat generated by the rapid

firing of numerous rounds of ammunition and allow[] the user to grasp the barrel

and hold the weapon with two hands, facilitating spray firing,”Merrill v. Navegar,

Inc., 28 P.3d 116, 137 (Cal. 2001) (Werdegar, J., dissenting), an attribute useful for

mass assaults but hardly needed to defend oneself in the home.

10 Likewise, the “predominant advantage [of folding and telescoping stocks] isfor military purposes.” ATF Report Ex. 5. These stocks’ “main advantage . . . isportability, especially for airborne troops,” and such stocks are “normally notfound on the traditional sporting rifle.” Id. Moreover, firearms equipped withtelescoping or folding stocks are uniquely dangerous to bystanders: While “[t]hesestocks allow the firearm to be fired from the folded position, . . . it cannot be firednearly as accurately as with an open stock.” Id.


21

Muzzle Brakes and Compensators. Muzzle brakes and compensators are

devices that control “muzzle climb”—i.e., the tendency of the weapon’s recoil to

force the barrel up, and off target, after each round is fired. Muzzle climb,

however, only occurs when shooters fire their weapons so rapidly that they cannot

reacquire the target between shots. See ATF Report Ex. 5. As in the case of

protruding grips, then, the utility of muzzle brakes and compensators is largely

confined to offensive, rapid-fire uses—not self-defense, where the shooter is

presumably confronting only a very limited number of targets and is more

concerned with precisely hitting a target.

In sum, semi-automatic assault weapons with these features have “a military

configuration that was designed for killing and disabling the enemy.” ATF Report,

at 1. As such, they create “mass produced mayhem” without materially improving

the shooter’s self-defense capabilities. U.S. Dep’t of Treasury, Assault Weapons

Profile 19 (quoted in Heller II, 2011 WL 4551558, at *15).

The extraordinary dangerousness of assault weapons is confirmed by the fact

that they are often indistinguishable from military-grade firearms, other than firing

semi-automatically rather than fully automatically. The Supreme Court has

already indicated that “M-16 rifles and the like” may be banned as “‘dangerous and

unusual.’” Heller, 554 U.S. at 627. And the D.C. Circuit recently held in Heller II

that “it is difficult to draw meaningful distinctions between the AR-15,” the


22

civilian version of the M-16, “and the M-16.”11 Heller II, 2011 WL 4551558, at

*15. “[S]emi-automatics still fire almost as rapidly as automatics.” Id. (citing

Siebel Testimony (“30-round magazine” of Uzi “was emptied in slightly less than

two seconds on full automatic, while the same magazine was emptied in just five

seconds on semiautomatic”)). Furthermore, the “AR-15 and other [formerly]

federally banned assault weapons . . . ‘accept ammunition magazines made for . . .

military weapons.’” Id. (quoting Koper, An Updated Assessment 4)). In fact,

“‘[m]any M-16 parts are interchangeable with those in the AR-15 and can be used

to convert the AR-15 into an automatic weapon.’” Id. (quoting Staples v. United

States, 511 U.S. 600, 603 (1994)).

A long history of mass shootings confirms that assault weapons are

disproportionately chosen by those who intend to inflict mass mayhem, and thus

present a unique danger to public safety. A 2004 study supported by the

Department of Justice concluded that assault weapons “account for a larger share

of guns used in mass murders and murders of police, crimes for which weapons

with greater firepower would seem particularly useful.” Koper, An Updated

Assessment 51, 87, quoted in Heller II, 2011 WL 4551558, at *15. Consistent with

this finding, the available evidence suggests that attacks carried out with assault

weapons tend to be particularly lethal. “In mass shooting incidents . . . that

11 Here, Appellant wielded the “civilian” version of the AK-47.


23

occurred during the [1984-1993 period], offenders using [assault weapons] and

other semiautomatics with [large-capacity magazines] . . . claimed an average of 29

victims in comparison to an average of 13 victims for other cases.” Id. at 86 & tbl.

9-1. As these statistics show, assault weapons are particularly well suited for those

who desire to impose maximum destruction.

2. Numerous Legislatures and Courts Have Recognized TheDanger Posed By Assault Weapons.

Numerous states and municipalities have recognized the dangers posed by

assault weapons and enacted legislation restricting the possession of these

firearms.12 And courts reviewing restrictions on assault weapons have repeatedly

recognized the unique dangers posed by these firearms. Most recently, in Heller II,

the D.C. Circuit rejected contentions that assault weapons are no more dangerous

12 See D.C. Code §§ 7-2502.02(a)(6), 7-2506.01(b); N.Y. Penal Law §§265.00(22), 265.02(7), 265.10 (prohibiting possession, manufacture, disposal, andtransport of assault weapons); Conn. Gen. Stat. §§ 53-202a, 53-202c (prohibitingpossession of semi-automatic firearms); Cal. Penal Code §§ 12276–12282 (same);Haw. Rev. Stat. §§ 134-1, 134-4, 134-8 (banning assault pistols); Mass. Gen. Lawsch. 140, §§ 121–123 (banning assault weapons as defined in expired federal law);Md. Code, Criminal Law, §§ 4-301–4-306 (prohibiting assault pistols); N.J. Stat.Ann. §§ 2C:39-1(w), 2C:39-5 (prohibiting assault firearms); Legal Cmty. AgainstViolence, Regulating Guns in America: An Evaluation and Comparative Analysisof Federal, State, and Selected Local Guns Laws 25-26 (Feb. 2008),http://www.lcav.org/publications-briefs/reports_analyses/RegGuns.entire.report.pdf (listing select municipalities that prohibit assaultweapons); Aurora, Ill., Code of Ordinances § 29-49 (prohibiting assault weapons);City Code of Buffalo N.Y. § 180-1 (prohibiting assault weapons, including assaultrifles); Denver Colo. Mun. Code § 38-130 (same); City of Rochester Code § 47-5(same).


24

than other firearms. Instead, the D.C. Circuit properly deferred to the D.C.

Council’s judgment that “assault weapons . . . creat[e] ‘mass produced mayhem’”;

that their “military features . . . are designed to enhance their capacity to shoot

multiple targets very rapidly”; that they “place law enforcement officers ‘at

particular risk . . . because of their high firepower’”; and that they “‘account for a

larger share of guns used in mass murders and murders of police.’” 2011 WL

4551558, at *15 (citations omitted). Court decisions pre-dating Heller II had

similarly noted the extraordinary dangerousness of assault weapons. See

Springfield, Inc. v. Buckles, 292 F.3d 813, 818 (D.C. Cir. 2002) (crediting ATF’s

decision that certain assault weapons “had increasingly been used in the

commission of violent crimes”); Navegar, Inc. v. United States, 192 F.3d 1050,

1061 (D.C. Cir. 1999) (upholding federal assault weapon ban because Congress

acted “[b]ased on the grave dangers posed by [semi-automatic assault weapons]

before prior federal and state laws could be enforced”); Benjamin v. Bailey, 662

A.2d 1226, 1235 (Conn. 1995) (noting that “assault weapons pose an increasing

risk to society,” including “police officers and innocent victims”); Robertson v.

City & Cnty. of Denver, 874 P.2d 325, 332 (Colo. 1994) (“The unique

characteristics of assault weapons coupled with the prevalent use of such weapons

for criminal purposes establish that such weapons pose a substantial threat to the

health and safety of the citizens of Denver.”); Arnold v. Cleveland, 616 N.E.2d 163,


25

173 (Ohio 1993) (relying on the “public safety threat of assault weapons”).

Amici’s characterization of assault weapons as ordinary arms with myriad

legitimate uses is irreconcilable with these uniform judicial determinations, and

assault weapons are among the “dangerous and unusual weapons” Heller

specifically excluded from the Second Amendment’s scope. Appellant’s choice of

weapon, therefore, precludes him from making a Second Amendment claim.


26

CONCLUSION

For the foregoing reasons, amicus respectfully requests that the Court affirm

the decision of the district court.

Respectfully submitted,

/s/ Jessica L. EllsworthJONATHAN E. LOWYDANIEL R. VICEBrady Center to Prevent Gun ViolenceLegal Action Project1225 Eye Street, N.W., Suite 1100Washington, D.C. 20005

Dated: December 19, 2011

JONATHAN L. DIESENHAUSJESSICA L. ELLSWORTHMATTHEWC. SULLIVANHOGAN LOVELLS US LLP555 Thirteenth Street, N.W.Washington, D.C. 20004Tel.: (202) 637-5600Fax: (202) 637-5910



CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because it contains 6233 words, excluding the parts of the brief

exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has

been prepared in a proportionally spaced typeface using Microsoft Office Word

2003 in Times New Roman 14-point font.

/s/ Jessica L. EllsworthJONATHAN L. DIESENHAUSJESSICA L. ELLSWORTHMATTHEWC. SULLIVANHOGAN LOVELLS US LLP555 Thirteenth Street, N.W.Washington, D.C. 20004Tel.: (202) 637-5600Fax: (202) 637-5910


CERTIFICATE OF SERVICE

I hereby certify that on December 19, 2011, I electronically filed the

foregoing with the Clerk of the Court using the CM/ECF system, which will send

notification of such filing to all registered users of the CM/ECF system. I further

certify that I mailed a copy of the foregoing to all non-registered users of the

CM/ECF system.

/s/ Jessica L. EllsworthJONATHAN L. DIESENHAUSJESSICA L. ELLSWORTHMATTHEWC. SULLIVANHOGAN LOVELLS US LLP555 Thirteenth Street, N.W.Washington, D.C. 20004Tel.: (202) 637-5600Fax: (202) 637-5910



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